Customary law was extinguished by the passage of criminal statutes of general application, the facts and circumstances arising from the defendant’s Aboriginality, namely the operation within her Aboriginal community of practices affecting her, remain relevant. The courts are entitled to pay regard to those matters as relevant circumstances in the sentencing process. The court observed that the wishes of the victim of the offence in relation to the sentencing of the offender are not usually relevant, and that the wishes of the relevant community, of which the victim was a leading member, may not be permitted to override the discharge of the judge’s duty. Nonetheless, they may be taken into account on mitigation.This case illustrates how evidence of traditional customs and beliefs may be relevant to an explanation of the defendant’s conduct, mitigating the seriousness of the offence. In that respect, it is not strictly a precedent for the recognition of Aboriginal customary law, in so far as that term is understood to mean something akin to “a system of rules of conduct which is felt as obligatory upon them by the members of a definable group of people”. The defendant lit a number of fires believing this would frighten evil spirits away, shortly after he had been threatened by his father with ill fortune or punishment at the hands of tribal kadaitcha men. The mention of kadaitcha tends to strike fear into the hearts of many Aboriginal people. In fact, Justice Zelling observed that a threat of use of kadaitcha would produce an immediate superstitious panic in the mind of the person threatened. The defendant “was put literally in fear for his life”. When police officers attempted to apprehend the defendant, he assaulted them. The appellate court (hearing an appeal on severity of sentence) accepted that the defendant’s state of mind had been affected, to some extent, by the threat of the “kadaitcha2” men and that this mitigated the seriousness of the offence. The trial judge had failed to make allowance for “the mitigating circumstances (particularly those arising from the culture of the appellant) which clearly existed”.The trial judge admitted into evidence a letter signed by the Chairman and Town Clerk of the Yirrkala Dhanbul Community Association stating the effect of the defendant’s imprisonment on the community and its desire that he be returned to the community to be dealt with in the traditional manner.
African Customary Law: The Problem of Concept and Definition
C. M. N. White Journal of African Law, Vol. 9, No. 2 (Summer, 1965), pp. 86-89.
B Debelle, Aboriginal Customary Law and the Common Law in E Johnston, M Hinton and D Rigney (eds), Indigenous Australians and the Law (Cavendish Publishing, Sydney, 1997).
R v Shannon (1991) 57 SASR 15 at 17 (Olsson J).
Veen v The Queen (Veen No 1) (1979) 143 CLR 458; Veen v The Queen (Veen No 2) (1988) 164 CLR 465.
NSW, Ministry for the Status and Advancement of Women, Report – Aboriginal Women and the Law (Dubay Jahli) (Report to New South Wales Parliament, 1994) (“Dubay Jahli Report).
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